RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02092
		INDEX NUMBER:  123.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

He receive all pay and allowances for the period he was assessed lost time due to his incarceration by civilian authorities.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was wrongfully incarcerated as evidenced by all charges against him being dropped.  In support of his appeal he provides a copy of the motion to dismiss.

The applicant’s complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 9 Jul 02 and is presently serving in the grade of airman first class (A1C).  According to information in the personnel data system, he was arrested on 5 Aug 03 by civilian authorities in Arizona and extradited to Texas to face a charge of child molestation.  He was placed in confinement from 6 Aug 03 to 29 Aug 03 when he was released on bond.  He was arrested again on 30 Sep 03, this time for possession of cocaine.  He remained in confinement until    22 Dec 03.  The charges against him were eventually dismissed.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA does not make a specific recommendation.  They cannot determine from the available information whether the applicant actually committed either or both of the charged offenses.  However, based on 10 U.S.C. Section 972(a)(3), the Air Force did not err in characterizing the time the applicant spent in confinement as lost time since the statute provides no exceptions for enlisted members confined by military or civilian authorities for more than one day in conjunction with a trial.  Applying the plain meaning of the statute, however, can potentially create an inequity or injustice for those not convicted of the offense initially charged.  Such may be the case with the applicant.  The charges against him were dropped due to a lack of evidence.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 3 Sep 04 for review and comment within 30 days.  To date, a response has not been received.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, DFAS-POCC/DE prepared an additional advisory.  They make no recommendation but confirm applicant would not have been entitled to pay and allowances while in civil confinement.

The complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 9 Nov 04 for review and comment within 30 days.  To date, a response has not been received.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  AFPC/JA notes the evidence clearly supports the applicant’s contention he was not prosecuted for the crimes alleged against him.  In accordance with the DoD Financial Management Regulation (DoDFMR), Vol 7A, Table 1-12, Rule 5, a member is entitled to otherwise proper credits of pay and allowances when confined by civil authorities when the absence is excused as unavoidable.  According to the DoDFMR, Vol 7A, Table  1-13, Rule 2, an absence is excused as unavoidable when it is clear that arrest and detention were not due to member’s misconduct.  In this case, the evidence of record does not indicate what part, if any, the applicant’s conduct contributed to his arrest.  As such, since all charges against him were subsequently dropped, we believe he should be given the benefit of the doubt and his absence excused as unavoidable, which would entitle him to pay and allowances during his confinement.  Therefore to avoid a possible injustice to the applicant, we recommend his record be corrected as indicated below.

__________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that competent authority determined his absence due to confinement by civil authorities from 6 August 2003 to 27 December 2003 was excused as unavoidable and that he is entitled to all pay and allowances for this period.

__________________________________________________________________

The following members of the Board considered Docket Number BC-2004-02092 in Executive Session on 15 December 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 25 Jun 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/JA, dated 9 Aug 04.
     Exhibit D.  Letter, SAF/MRBR, dated 3 Sep 04.
     Exhibit E.  Memorandum, DFAS-POCC/DE, dated 3 Nov 04.
     Exhibit F.  Letter, AFBCMR, dated 9 Nov 04.

AFBCMR BC-2004-02092

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to. XXXXXXX, XXXXXXX, be corrected to show that competent authority determined his absence due to confinement by civil authorities from 6 August 2003 to 27 December 2003 was excused as unavoidable and that he is entitled to all pay and allowances for this period.